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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.4227 OF 2003   

SRI GANGAI VINAYAGAR TEMPLE & ANR.       .…..APPELLANTS

Versus

MEENAKSHI AMMAL & ORS.                               …..RESPONDENTS

J U D G M E N T

VIKRAMAJIT SEN, J.   

1.  A maze of  facts  and events,  and a labyrinth of  legal  conundrums  

confront us in the course of the determination of this Appeal.  Essentially, it   

is the ambit and sweep of the principle of res judicata that is at the centre of  

controversy.   Additionally, Order II Rule 2 of the Code of Civil Procedure  

(“CPC”  for  brevity),  which  enshrines  but  another  complexion  of  res  

judicata, also requires to be cogitated upon.  The contention of the Appellant  

through  its  Trustees  (hereafter  referred  to  as  ‘Trust’)  is  that  the  

Respondents/Tenants  (‘Tenants’  for  brevity)  of  the  demised  property  are  

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barred by the principle of res judicata from challenging the findings of the  

Trial Court especially the Trust’s ownership of the demised property, since  

the  said  Tenants  have  filed  only  one  appeal,  i.e.  arising  from O.S.6/78,  

without  assailing  identical  conclusions  arrived  at  by  the  Trial  Court  in  

O.S.5/78 and O.S.7/78.   

2. The  uncontroverted  facts  are  that  the  husband  of  the  first  

Respondent/Tenants (namely, Kannaiya Chettiar along with another person  

Venkatarama Keddiar) the suit  land on lease from Sethurama Chettiar on  

1.3.1953 for  a  period of  12 years  on  a  monthly  rent  of  Rs.150/-.    The  

Tenants were permitted to construct a cinema theatre on the suit land at their  

own cost, which they have done in the name and style of ‘Raja Talkies’,  

which is still in existence.  In 1959 one of the partners died, resulting in the  

husband of Respondent No.1 assuming sole proprietorship of ‘Raja Talkies’.  

On 8.11.1967 a fresh Registered Notaire Lease Deed was executed for  a  

period  of  15  years  commencing  from  1.1.1968  between  the  husband  of  

Respondent  No.1  and  the  Appellant  Trust,  Gangai  Vinayagar  Temple  

through  its  Trustee’s  President  namely,  Shri  Sethurama  Chettiar.  

Consequent on the death of the husband of Respondent No.1, she continued  

as  the  tenant  along with her  children as  legal  representatives  of  her  late  

husband.   It is also not in dispute that the Trust sold the suit property to  

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Sarvashri P.Lakshamanan, P.Vadivelu and P.Saibabha who were impleaded  

by  the  Tenants  as  Defendants  7  to  9  in  O.S.  5/78.   The  Tenants  were  

informed of this transaction on 14.10.1976, calling upon them to attorn to  

the new owners.  The repercussion was that in 1976 itself, the Tenants filed  

O.S.5/78 (re-numbered) in which they had assailed the sale of the suit land  

on the predication that the legal formalities necessary for the transfer of trust  

property had not been adhered to as it was a Public Trust, and further that,  

subsequent  to  the  aforementioned  transaction,  the  Tenants  (Plaintiffs  in  

O.S.5/78)  apprehended  their  dispossession  therefrom at  the  hands  of  the  

Defendants, including Defendants 7 to 9  (hereinafter called ‘Transferees’).  

The Prayers have been reproduced infra.  In this suit, the Trust as well as the  

Transferees  pleaded  in  their  respective  Written  Statements  that  they  had  

neither  threatened nor  harboured any intention  to  dispossess  the  Tenants  

without due process of law.

3. The sequel of this first salvo of litigation was the filing of two suits by  

the Trust,  being O.S.6/78 and O.S.7/78, claiming arrears of rent from the  

Tenants (Respondent Nos. 1 to 6 before us, in which the Transferees were  

not impleaded) pertaining to the period prior to the transfer of the suit lands  

by them to the Transferees.    Despite the pleadings therein as mentioned  

above, O.S.5/78 came to be ‘dismissed’.   O.S.6/78 was partially decreed;  

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whilst  O.S.7/78  was  dismissed  on  the  ground  that  the  alleged  claim  of  

arrears of rent in this suit was not tenable as the said land was part of and  

encompassed in the suit land which was the subject matter of O.S.6/78 and,  

accordingly,  the claim was covered and subsumed therein.   The Tenants  

have not filed any appeal in respect of O.S.5/78 and O.S.7/78; and the Trust  

has not filed any appeal on the dismissal of their suit O.S.7/78.   All three  

suits have been decided, after recording of common evidence, by a common  

Judgment passed on 6.11.1982 by the Court of 2nd Additional District Judge  

at Pondicherry.   Pursuant to this Judgment three different decrees have been  

drawn.

4. The prayers contained in O.S.5/78 read as follows:

(i) Establishing the leasehold right of the plaintiffs and to be  in possession of the schedule mentioned property till the  end of the lease period viz. 1-1-1983; and

(ii) For permanent injunction restraining the defendants, their  agents, servants and other representatives from interfering  with the plaintiff’s peaceful possession and enjoyment of  the suit property till 1-1-1983.

(iii) Directing the defendants to pay to the plaintiff the costs of  the suit; and

(iv) Grant such other relief as this Honourable court may be  pleased to order in the circumstances of the case.  

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It is noteworthy that the Trust had not pressed for the framing of an Issue  

predicated on Section 116 of the Evidence Act.   In the plaint in O.S.5/78,  

the  Tenant  had  pleaded  that  the  Defendants  “have  no  right  to  sell  the  

property as the same is Trust property belonging to the 1st Defendant and as  

such the alienation would be totally void being a breach of trust…..  The  

alienation in favour of the Defendants 7 to 9 being void, they have no title to  

the property….. The cause of action arose on 30.6.1976 when Defendants 2  

to  6  purported  to  convey  the  suit  property  to  Defendants  7  to  9  and,  

thereafter,  when  Defendants  are  threatening  to  disturb  the  plaintiffs  

possession.”   Despite  the  specificity  of  these  pleadings  the  Tenants  had  

ostensibly not prayed for any relief with regard to the title of the Transferee.  

Nevertheless,  on  careful  consideration  it  appears  to  us  that,  awkwardly  

worded though it avowedly is, the first prayer endeavours to articulate this  

very prayer.   In any event, the pleadings are sufficient to lay the foundations  

for the assumption that the Tenants were desirous of assailing the transfer of  

the title of the land.   That being the position, the embargo of Order II Rule 2  

CPC would become operative against the Tenants.  The Issue relevant for  

the present purposes (the burden of proof of which was set on the Tenants)  

reads thus:-  

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(2) Whether the suit property is not the personal property of  Sethurama Chettier and whether the plaintiffs are not estopped  from questioning the title of the landlord or his vendors.

We hasten to clarify that had the Tenants (in O.S. 5/78) merely expressed a  

fear or apprehension of dispossession at the hands of the persons that had  

been  arrayed  as  defendants,  either  collectively  or  individually,  without  

touching upon the legal character of the suit property as well as the legal  

propriety  and capacity  of  Trust  (Defendants  2  to  6)  to  transfer  it  to  the  

Transferees  (Defendants  7  to  9),  Order  II  Rule  2  would  not  had  been  

attracted.   These questions could then have been subsequently raised in the  

event the new owners, namely, Defendants 7 to 9 were to bring any action or  

claim before a court of law against the Tenants.   It is for this reason that we  

are  unable  to  agree with the determination of  the Division Bench in the  

Impugned Order that this Issue was not central to Suit O.S.5/78 and that,  

therefore, res judicata did not apply despite the failure of the Tenants to  

appeal  against  the  verdict  in  O.S.5/78.   We  cannot  sustain  the  order  of  

‘dismissal’ of the Suit O.S.5/78 nay even the necessity of conducting a trial  

in  that  lis in  the  wake  of  the  Defendants’  averments  in  their  Written  

Statement.  Ergo, it seems to us that an appeal therefrom was essential.   We  

also think it  to be extremely relevant  that  the Tenants  did not  assail  the  

judgment and decree in O.S.7/78 since it was reiterated therein that the Trust  

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was the private property of Sethuram Chettiar.  This finding has therefore  

attained finality, both in O.S.5/78 and O.S.7/78, which thereupon assumed  

the character the “former suit”.  Since the Trust had also not filed an appeal  

against O.S.7/78 res judicata became operative against it on two aspects –  

firstly that there were two tenancies and secondly that any arrears of rent had  

separately accrued other than what was claimed in O.S.6/78.    

5. It is in similar circumstances that a Coordinate Bench had concluded  

in  Premier  Tyres Limited  vs.  Kerala  State  Road  Transport  Corporation,  

1993 (Suppl.) 2 SCC 146, that the effect of non-filing of an appeal against a  

decree is that it attains finality and that this consequence would logically  

ensue when a decree in a connected suit is not appealed from.   It permeates,  

as in the case in hand, into the sinews of all suits (O.S.5/78 and O.S.7/78)  

since common Issues had been framed, a common Trial had been conducted,  

common  evidence  was  recorded,  and  a  common  Judgment  had  been  

rendered.   It seems to us that the Division Bench had adopted the dialectic  

of  the  challenge  to  the  title  being  irrelevant  in  O.S.5/78  in  order  to  

distinguish and then digress from the decision in Premier Tyres.   Facially,  

all the factors are common to each suit, namely, the commonality of Issues,  

Trial and Verdict rendering any effort to differentiate them to be an exercise  

in futility.   A reading of the plaint and of Issue No.2 in O.S.5/78 (supra) will  

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make it impossible to harbour the view that the contours of controversy in  

that case concerned only the apprehension of forcible dispossession of the  

Tenants by the Trust as well as the Transferees.   Otherwise, Issue No.2 was  

palpably irrelevant to the decision in O.S.5/78 and an ignorable surplusage.  

Furthermore, the dismissal of the suit, even though it was on the specious  

and untenable ground that no cause of action had arisen to justify the filing  

of  O.S.5/78, would inexorably lead to the conclusion that the Tenants were,  

thereafter,  bereft  of  any  right  in  the  suit  property.    The  dismissal  of  

O.S.5/78, arguably, would become fatal to the interest of the Tenant, if a  

pedantic perspective is pursued.  

6. As outlined above, in the impugned Judgment the Division Bench of  

the  High  Court  of  Judicature  at  Madras  had  highlighted  that  the  only  

question  argued before  it  was  that  the  principles  of  res  judicata applied  

against the Tenant since it negligently if not concertedly did not appeal the  

verdict  in  O.S.5/78.   At  the threshold  of  its  reasoning,  it  referred to  the  

decision  of  this  Court  in  Premier  Tyres and pithily  observed  that  the  

argument raised on behalf of the Trust would be “impeccable and would  

have to be accepted, only if the Appellant succeeds in establishing that Issue  

No. 2 in O.S. 5/78 was, in fact, an issue which directly and substantially  

arose for consideration in that suit and that the findings had been recorded  

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thereon in favour of the Appellant”.   It would have been expected of learned  

Counsel for the parties to have cited two decisions of different coordinate  

Benches of this Court, namely,  Lonankutty vs. Thomman (1976) 3 SCC  

528  and  Narayana  Prabhu  Venkateswara  Prabhu vs.  Narayana  Prabhu  

Krishna Prabhu (1977) 2 SCC 181, which throw considerable light on this  

subject.   Regrettably, learned Senior Counsel for the parties have neglected  

to draw notice to these two precedents, even before us.  

7. Lonankutty concerned  a  dispute  between  two  owners  of  adjacent  

lands.  The land of the Appellant was bounded on two sides by a river while  

the land of the respondents was landlocked, which prompted the respondents  

to construct a bund with sluice-gates on the border of their lands, so that  

they could draw water from the Appellant’s land for the purposes of fishing  

and agriculture and thereafter divert the water back through the same land to  

the  river.  The  Appellant  who  was  cultivating  prawn-fishing  on  his  land  

aggrieved by the construction of the bund believing it to have hampered his  

prawn  fishing;  therefore,  he  filed  a  suit  for  perpetual  and  mandatory  

injunction against the respondents. The respondents in turn filed a suit for  

injunction against the appellants and claimed rights of easement. The two  

suits were disposed of separately by the Court of Munsif and decrees were  

passed in both the suits to the effect that the respondents were to have rights  

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of easement only with respect to agriculture but not for fishing. From the  

decrees, two set of appeals were preferred by both the parties, leading to four  

appeals altogether.   The District Court dismissed all the appeals and thereby  

confirmed the decrees.  The respondents then filed second appeals against  

the decisions which arose from the appellant’s suit but no second appeal was  

preferred  from the  appeals  arising  from their  own suit.  Before  the  High  

Court  in  Second Appeal,  the Appellant  promptly pressed the preliminary  

objection of  res judicata contending that the decrees passed by the District  

Court in the appeals arising from the respondents’ suit had become final.  

The High Court, however, was not impressed with that contention, primarily  

keeping the case of Narhari in perspective, and remanded the matter to the  

District  Court  after  setting aside the judgment and decree of  the District  

Court. The District Court in remand confirmed the previous view taken by it,  

against which the respondent again filed a Second Appeal in the High Court  

which was allowed, resulting in filing of a SLP by the Appellant. The sole  

and central issue canvassed before this Court was whether the Respondents’  

right to divert the flow of water through the Appellant’s land for fishing  

purposes  is  barred  by  res  judicata,  and  this  Court  answered  in  the  

affirmative. This Court concluded that the Respondents, by not filing further  

appeals against the decree passed by the District Court in the appeals arising  

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out of their own suit allowed that decision to become final and conclusive. It  

observed further:

“That decision, not having been appealed against, could not be  reopened in the second appeal arising out of the appellant’s suit.  The issue whether respondents had the easementary right to the  flow of water through the appellant’s land for fishing purposes  was directly and substantially in issue in the respondent’s suit.  That issue was heard and finally decided by the District Court  in a proceeding between the same parties and the decision was  rendered  before  the  High  Court  decided  the  second  appeal…..The circumstance that the District Court disposed of  the  4  appeals  by  a  common  judgment  cannot  affect  the  application of Section 11… The failure of the respondents to  challenge  the  decision  of  the  District  Court  insofar  as  it  pertained to  their  suits  attracts  the  application  of  Section 11  because to the extent to which the District Court decided issues  arising  in  the  respondents’  suit  against  them,  that  decision  would operate as res judicata since it was not  appealed  against.”

8. In Prabhu, the parties were descendants of one Narayan Prabhu. The  

respondent, third son among four sons of Narayan Prabhu, filed a suit for  

partition against all  the sons claiming all  the concerned items to be joint  

family  property.  The  appellant,  the  eldest  son,  filed  a  money  suit  only  

against the respondent on the ground that trade of tobacco shops run by the  

parties in that suit was his self-acquired property; consequently, that he was  

entitled to money due on account of tobacco delivered to the respondent’s  

shop. The Trial Court tried both the suits together and determined them by  

way of two decrees on the same date, holding that the shops in question  

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belonged to the concerned individuals. The respondent appealed against both  

the decrees  before the High Court,  and the two appeals  were decided in  

continuation under separate headings. The High Court while reversing the  

findings of the Trial Court held the shops to be part of joint family trade in  

tobacco  and  thus  dismissed  the  money  suit.  The  appellant  thereafter  

approached  this  Court  assailing  the  judgment  and  decree  passed  in  the  

partition  suit,  whilst  leaving the  judgment  and decree  in  the  money suit  

unchallenged.  Expectedly,  the  issue  of  res  judicata was  evoked  by  the  

respondent, which was sought to be doused by the appellant by contending,  

inter alia, that no certificate of fitness under the unamended Article 133(1)

(c) of the Constitution of India was granted with respect to the money suit  

and also that parties were not common in both the suits. This Court while  

disagreeing with the grounds taken by the appellant noted that there were  

two  separate  decrees  and  appellant  could  always  have  challenged  the  

correctness or finality of the decision of the High Court in the money suit by  

means of an application for Special Leave to Appeal and approved the views  

taken by this Court in Lonankutty and reiterated:  

“The expression “former suit”,  according to Explanation I of  Section 11 of the Civil Procedure Code, makes it clear that, if a  decision is given before the institution of the proceeding which  is  sought  to  be  barred  by  res  judicata,  and  that  decision  is  allowed to become final or becomes final by operation of law, a  bar of res judicata would emerge.”   

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9. O.S.6/78  was  a  suit  filed  by  the  Trust  claiming  an  amount  of  

Rs.11468/-  as  arrears of  rent  from the Tenants.    Significantly,  the three  

Transferees  (who  were  Defendants  7  to  9  in  O.S.5/78)  had  not  been  

impleaded by the Trust palpably because no relief had been claimed against  

them  and  additionally  because  their  presence  was  not  relevant  for  the  

determination of the Issues that had arisen in O.S.6/78 and O.S.7/78.  The  

claims pertained to a period prior to the assailed transfer of the demised land  

from the  Trust  to  the  Transferees.    It  is  also  noteworthy  that  even  the  

Tenants  did  not  seek  their  impleadments  despite  the  fact  that  they  had  

already  laid  siege  to  the  title  of  the  said  Transferees  in  their  plaint  in  

O.S.5/78  and  had  specifically  pleaded  so  in  their  Written  Statements  in  

O.S.6/78 and O.S.7/78.   In this Suit, it was averred that the Trust had sold  

the suit land to the aforementioned Sarvshri P. Lakshamanan, P. Vadivelu  

and P. Saibabha (Transferees being Defendants 7 to 9 in O.S.5/78).   It was,  

inter  alia,  pleaded  that  the  advance  rent  of  Rs.7000/-  was  

repayable/adjustable only at the time of the handing over of the suit property  

by the Tenant to the Trust.  Since relief claimed in O.S.6/78 or O.S.7/78 had  

no causality or connection with the Transferees their impleadment was not  

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necessary, in our opinion.  The defence of the Tenants was that the Trust  

was  a  public  temple which could  not  have  been sold/transferred by Shri  

Sethurama Chettiar and secondly that the amount claimed as arrears of rent  

was not due and payable.   Various other pleas had been raised to which we  

need not advert as they are not germane for deciding the present Appeal.   It   

will be relevant, however, to mention that the Tenants had also denied that  

any additional land had been taken on rent.    Of the six Issues which came  

to be struck in  O.S.  6/78 and O.S.  7/78,  the following are  relevant  and,  

therefore, reproduced:-   

“(2) Whether the entire suit property (‘A’ and ‘B’ schedule) in  possession of the defendants are covered by the lease deed  dated 8-11-67 or whether there was any subsequent  oral  agreement in respect of ‘B’ schedule property alone and if  so, what is its lease amount?

(3)   Whether  the  suit  property  belongs  to  a    public  temple  governed  by  the  Act.    If  so,  whether  the  suit  is  maintainable for want of sanction under Section 26 of the  Hindu Religious Institutions Act.”

10. As  already  noted  above,  O.S.6/78  was  decreed  only  for  a  sum of  

Rs.268/- holding,  inter alia,  that the Tenants cannot adjust the advance of  

Rs.7000/- as against the rent claim of Rs.11,468/- without the sanction of the  

landlord; that since the suit property was not owned by a public temple but  

by a private trust, being the personal property of Shri Sethurama Chettiar,  

sanction under Section 26 of the Hindu Religious Institutions Act was not  

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necessary; and that the Transferees had become the absolute owners of the  

suit property by transfer/sale.  Most significantly, it was also held that the  

Tenants “are stopped from challenging the title of the present landlord and  

they are bound to attorn the tenancy.  They have no right to question the title  

of the landlord or his successors-in-title.”   It is also palpably perceptible that  

the common Judgment entered into the arena of title and transferability of  

the suit  property owing to the Tenants’  stance  in  all  three suits,  thereby  

rendering imperative the filing of Appeals against the decrees in O.S.5/78 as  

well as O.S.7/78.   

11. In  O.S.7/78,  as  already  outlined,  the  Trust  sought  recovery  of  

Rs.2600/- as arrears of rent in respect of an alleged oral lease for the land  

mentioned in Schedule ‘B’ situated on the western side of the Schedule ‘A’  

property.    The  defence  of  the  Tenants  was  that  the  entire  property  

comprising both Schedules ‘A’ and ‘B’ was a composite whole, and was let  

out for a period of 15 years by means of the Lease Deed dated 8.11.1967.   It  

was also pleaded that the suit had been filed by a public trust and, thus, was  

not  competent  as  framed.   The  Trial  Court  held  that  the  entire  demised  

property was one, covered by the aforementioned Registered Lease Deed,  

and, accordingly, O.S. 7/78 was dismissed with costs. It  has  been  

correctly observed in the common Judgment dated 6.11.1982 by which all  

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three  Suits  have  been  decided,  that  the  Issues  framed  in  O.S.6/78  and  

O.S.7/78 were ‘one and the same’.   In a nut-shell, the Trial Court returned  

the finding that the Trust was not a Public Trust governed by the Hindu  

Religious Institutions Act, 1972 and that the sale of the demised suit land by  

the  Private  Trust  through  Shri  Sethurama  Chettiar  to  Sarvashri  P.  

Lakshamanan, P. Vadivelu and P. Saibabha, was not contrary to law.    

12. As has already been reflected and commented upon, the Tenants had  

filed an Appeal only in respect of O.S.6/78, although common conclusions  

had  been  arrived  at  in  all  three  Suits,  except  for  some  inconsequential  

differences.  It is trite that the obligation and duty to frame Issues is cast  

solely  on the Court  which may,  nevertheless,  elicit  suggestions  from the  

litigating adversaries before it.    Issues settled by the Court under Order  

XIV CPC constitute the crystallization of the conflict or the distillation of  

the dispute between the parties to the lis, and are in the nature of disputed  

questions of fact and/or of law.  While discharging this primary function, the  

Court is expected to peruse the pleadings of the parties in order to extract  

their essence, analyse the allegations of the parties and the contents of the  

documents produced by them, and, thereafter, proceed to frame the Issues.  

In our opinion, so far as O.S.5/78 is concerned, the question of the title of  

the  property  would  ordinarily  remain  irrelevant  to  that  litigation  for  two  

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reasons.  Firstly, Section 116 of the Evidence Act bars the Lessee/Licensee  

from constructing  if  not  concocting  a  challenge  vis-à-vis the  title  of  the  

Lessor/Licensor, if it is the latter who has put the former in possession of the  

demised/licensed premises.  In the case in hand, the first lease was executed  

by Shri  Sethurama Chettiar  and the renewal  or  the succeeding lease was  

between the Trust through its President, Shri Sethurama Chettiar, on the one  

hand, and the Tenants on the other.    The Tenants, therefore, stood legally  

impeded and foreclosed from assailing the title of the Trust,  as has been  

correctly concluded by the Trial Court, even though a specific Issue had not  

been struck in this context in O.S.5/78.   There is no gainsaying that where  

parties are aware of the rival cases the failure to formally formulate an Issue  

fades  into  insignificance,  especially  when  it  is  prominently  present  in  

connected matters and extensive evidence has been recorded on it without  

demur.  Secondly, on a proper perusal of the plaint, it ought to have been  

palpably evident that the Plaintiff/Tenant in O.S.5/78 feared dispossession  

from the demised premises because of what they considered to be an illegal  

transfer; but since all the Defendants had averred in their Written Statement  

that  they  had  no intention  of  doing so,  the  suit  ought  not  to  have  been  

dismissed but ought to have been decreed without more ado solely so far as  

the prayer of injunction was concerned.   But, in the Trial Court the title to  

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the leased land had become the fulcrum of the fight, owing to the pleadings  

of the Tenant in which it had repeatedly and steadfastly challenged the title  

of the Trust as well as the Transferees.  The Tenant should not be permitted  

to approbate and reprobate, as per its whim or convenience, by disowning or  

abandoning a controversy it has sought to have adjudicated.   

13. Chapter  VIII  of  the  Evidence  Act  under  the  heading ‘Estoppel’  is  

important for the present  purposes.   This fasciculus comprises only three  

provisions,  being  Sections  115  to  117.   For  ease  of  reference  we  shall  

reproduce Section 116:-  

“116.  Estoppel  of  tenant;  and  of  licensee  of  person  in  possession.-  No  tenant  of  immovable  property,  or  person  claiming through such tenant, shall, during the continuation of  the  tenancy,  be  permitted  to  deny  that  the  landlord  of  such  tenant  had,  at  the  beginning  of  the  tenancy,  a  title  to  such  immovable  property;  and  no  person  who  came  upon  any  immovable property by the license of the person in possession  thereof, shall be permitted to deny that such person had a title to  such possession at the time when such license was given.”

Plainly, this provision precludes the consideration of any challenge to the  

ownership of the Trust as the claim for arrears of rent was restricted to the  

period prior  to  the sale  of  the suit  land by the Trust  to  the Transferees,  

namely  Defendants  7  to  9  in  O.S.5/78.   The  position  would  have  been  

appreciably  different,  were  the  said  Defendants  7  to  9  to  lay  any  claim  

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against the Tenants for arrears of rent or, for that matter, any other relief.  

This is for the reason that Section 116 of the Evidence Act would not come  

into  play  in  any  dispute  between  the  Tenants  on  the  one  hand  and  the  

Transferees on the other.   

14. We think it prudent to extract the conclusion from the Judgment dated  

6.11.1982  common  to  O.S.5/78,  O.S.6/78  and  O.S.7/78,  since  it  is  the  

fountainhead, the fulcrum of the legal nodus which we have to unravel. The  

Trial Court has opined thus -

When no trustee member or the Government is claiming any  right  over the suit  property,  it  is  not  known why the Tenant  should entertain a doubt as to whether real title has passed on to  the present purchasers of the suit property.  

The suit property is therefore not a public temple governed by  the  Act  and  since  the  property  is  found  to  be  the  private  property of  Sethrama Chettiar,  sanction O/S.26 of  the Hindu  Religious Institutions Act is therefore not necessary.  The suit  property being the personal property of Sethurama Chettiar and  the same having been sold to defendants 7 to 9, the latter have  become  the  absolute  owners  of  the  suit  property  and  the  plaintiffs in O.S.5/78 are stopped from challenging the title of  the present landlord and they are bound to attorn the tenancy.  They have no right to question the title of the landlord or his  successors-in-life.  

In  the result,  the  ample evidence produced by the defendant  would prove that  the suit  property is  the private  property of  Sethurama Chettiar and sale deed dated 30.6.76 in Ex.A.19 is  valid and the defendants 7 to 9 are now the real owners of the  property  who are  entitled  to  take  possession  of  the  property  

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after expiry of the lease.  In the result, the issues are answered  accordingly.  …………….

In  the  result,  O.S.5/78  is  dismissed  with  cost.   O.S.6/78  is  decreed  in  part  with  cost  as  per  the  calculation  above.  Regarding  O.S.7/78,  since  the  court  has  held  that  the  entire  property is one, there cannot be any lease amount for the rear  portion and it dismissed with cost.  

15. The Tenants filed Appeal 581 of 1983 in the High Court of Judicature  

at Madras which came to be decided by the learned Single Judge on 25th  

April,  1997.    It  is  indeed significant  that  the  Transferees  had not  been  

impleaded by the  Tenants  in  the First  Appeal,  although the former  were  

parties before the Trial Court in the Tenants’ own suit, viz. O.S. 5/78, and  

since any decision favourable to the Tenants as regards the legal propriety of  

the  transfer  of  title  would  severely  impact  upon  if  not  annihilate  the  

Transferees’ rights, and since O.S.5/78 had been ‘dismissed’, yet, regardless,  

no appeal thereagainst had been preferred.    Shri Sethurama Chettiar was  

represented through his legal representatives in Appeal 581 of 1983 which  

had been preferred in respect of O.S.6/78 specifically.   We have perused the  

contents of the Tenants Appeal, and as we expected, the gravamen of the  

assault  was  the  public  character  and  nature  of  the  Trust  and  the  legal  

imperfection of its transfer.   This also fortifies the analysis that the dispute  

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raised by the Tenants in their suit as well as their defence to the Trust’s suits  

was that mentioned in the preceding sentence.  This is indeed remarkable  

since the Tenant was fully alive to the detrimental nature of the decision in  

O.S. 5/78 and that it critically crippled its rights and interests, as is evident  

from the fact that the Tenant filed a Review bearing CRA No. 1/1993, which  

by a  detailed Judgment  dated 19.3.1999 was dismissed.     So far  as  the  

contentions of the parties are concerned, the First Appellate Court had noted,  

inter alia, that the Tenants had denied any liability towards the arrears of  

rent; that the Tenant had argued that the Trust’s Suits were not maintainable  

in  law  for  want  of  necessary  sanction  under  Section  25  of  the  Hindu  

Religious Institutions Act, 1972; that the Tenant did not admit the validity of  

the Sale Deed dated 1.7.1976 on the grounds that, having regard to Section  

25 of the Hindu Religious Institutions Act, 1972, it was a nullity. The First  

Appellate Court conducted an elaborate and detailed discussions as to the  

nature of the Temple/Trust property in order to ascertain whether it partook  

of a private or a public trust. We have already highlighted that O.S.5/78 filed  

by  the  Tenants  was  “dismissed”,  nevertheless,  this  verdict  has  not  been  

appealed against. After recording the detailed arguments on both sides, the  

First Appellate Court encapsulated the following points for consideration:-

(i)  Whether  the present  appeal  by the plaintiff  canvassing  the findings of the trial court on issue numbers 2, 3 and 4  

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by the learned trial Judge is barred by the doctrine of res- judicata as contended by the respondents?

(ii) Whether findings given by the learned trial Judge  on the above issues are correct, valid in law and as such it  is sustainable?

(iii) Whether  the  plaintiff  is  entitled  to  question  the  validity of the sale-deed in favour of defendants 7 to 9 by  the second defendant?

(iv) What relief, if any, the parties are entitled to?

Obviously, O.S. 5/78 was as focal as the other, otherwise (iii) above would  

not have arisen.  It is evident that all concerned erroneously assumed that  

O.S.5/78 had also been carried in Appeal.

16. The  First  Appellate  Court,  in  reversal,  held  that  the  Plaintiff  in  

O.S.6/78 was a Public Trust and, accordingly, fell within the purview and  

sweep of the Hindu Religious Institutions Act, 1972. So far as the failure of  

the Tenants to appeal against the dismissal of O.S.5/78, the First Appellate  

Court held, in our opinion questionably, that that was not necessary since  

there was no adverse findings against the Tenants.  While we can appreciate  

that owing to the stands of the defendants in their Written Statements filed in  

O.S.5/78 there was, in actuality, no challenge to the Plaint, but nevertheless,  

the suit of the Tenants had been ‘dismissed’ and therefore, at the very least,  

it  would have  been proper  and prudent  to  file  an  appeal  and at  least  in  

abundant  caution  obtain  a  clarification  thereon.  The  'dismissal'  of  suit  

O.S.5/78 cannot but be indicative of the opinion that all the assertions of fact  

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and law were in the opinion of the Trial Court legally untenable, perforce  

including that the Trust could not have transferred the suit property in the  

manner it did.   For this very reason the Tenant should also have appealed  

against the verdict in O.S.7/78 in respect of the findings of the Trial Court  

common to O.S.6/78; since the Trust had not assailed the rejection of its plea  

that  a  separate  tenancy  governed  the  claim  in  O.S.7/78  that  part  of  the  

verdict had attained finality.  The First Appellate Court has opined, in the  

event erroneously, that the doctrine of  res judicata was not attracted to the  

facts of the instant case.   It appears to us that the First Appellate Court lost  

perspective of the position that Section 116 of the Evidence Act rendered  

impermissible  and  incompetent  any  challenge  to  the  title  of  the  

Trust/Landlord which had put the Appellant in possession of the demised  

property.   It  is  also  noteworthy  that  the  Tenant  had  contested  the  legal  

capacity of the Trust/Landlord to convey the property to the Transferees.  

Ergo,  it  was  nobody’s  case  that  although  the  Trust  had  title  to  the  suit  

property at the inception it had lost it subsequently.    There is in fact a stark  

omission to discuss this aspect in the Judgment of the First Appellate Court,  

which therefore erred in concluding that the Trust/Landlord was a public  

trust and was, accordingly, incompetent to sell the Trust property. This is all  

the more significant since it reversed the opinion of the Trial Court without  

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affording any opportunity of hearing to the Transferees who had not been  

impleaded by the Tenants in its Appeal although they were defendants in the  

Tenants  suit;  they  were  not  before  the  High  Court  because  the  Tenant  

decided to not to appeal against the dismissal of O.S.5/78 in which it had  

also raised these very questions.   If it is contended that all the three suits  

were covered by a common judgment, the Tenant ought to have impleaded  

the Transferees in its Appeal.  

17. The Trust filed the Second Appeal before the Division Bench of the  

High  Court  of  Judicature  at  Madras,  but  inexplicably  and  conspicuously  

restricted its challenge only to the opinion of the First Appellate Court vis-à-

vis the impact and effect of the principle of  res judicata  on that  lis.  The  

Trust had by that time already sold the property and remarkably their only  

subsisting interest was for the recovery of the paltry decretal sum of Rs.268/.  

We would  have  expected  the  Trust  to  vehemently  assert  that  a  decision  

adverse  to  its  Transferees  could  legally  not  have been delivered  in  their  

absence; and that Section 116 of the Evidence Act disabled the Tenants from  

challenging the Trust’s title or legal character, since it is the Trust which had  

put the Tenant in possession.   However,  as it  has transpired,  the Second  

Appellate Court agreed with the interpretation given by the First Appellate  

Court that res judicata did not apply against the Tenants.  

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18. For facility of reference Section 11 of the CPC is extracted below:

Res Judicata- No Court shall try any suit or issue in which the  

matter directly and substantially in issue has been directly and  

substantially in issue in a former suit between the same parties,  

or  between  parties  under  whom they  or  any  of  them claim,  

litigating under the same title, in a Court competent to try such  

subsequent  suit  or  the  suit  in  which  such  issue  has  been  

subsequently raised, and has been heard and finally decided by  

such Court.

Explanation I.- The expression “former suit” shall denote a suit  

which has been decided prior to the suit in question whether or  

not it was instituted prior thereto.

Explanation  II.-  For  the  purposes  of  this  section,  the  

competence of a Court shall be determined irrespective of any  

provisions  as  to  a  right  of  appeal  from the decision of  such  

Court.

Explanation  III.-  The  matter  above  referred  to  must  in  the  

former suit have been alleged by one party and either denied or  

admitted, expressly or impliedly, by the other.

Explanation IV.- Any matter which might and ought to have  

been made ground of defence or attack in such former suit shall  

be deemed to have been a matter directly and substantially in  

issue in such suit.

Explanation V.- Any relief claimed in the plaint, which is not  

expressly granted by the decree, shall for the purposes of this  

section, be deemed to have been refused.

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Explanation VI.- Where persons litigate bona fide in respect of  

a  public  right  or  of  a  private  right  claimed  in  common  for  

themselves and others, all persons interested in such right shall,  

for the purposes of this section, be deemed to claim under the  

persons so litigating.

Explanation VII.- The provisions of this section shall apply to a  

proceeding for the execution of a decree and references in this  

section to any suit, issue or former suit shall be construed as  

references, respectively, to a proceeding for the execution of the  

decree;  question  arising  in  such  proceeding  and  a  former  

proceeding for the execution of that decree.

Explanation  VIII.-  An  issue  heard  and  finally  decided  by  a  

Court of limited jurisdiction, competent to decide such issue,  

shall  operate  as  res  judicata  in  a  subsequent  suit,  

notwithstanding that such Court of limited jurisdiction was not  

competent to try such subsequent suit or the suit in which such  

issue has been subsequently raised.

The  decision  rendered  by  three  Co-ordinate  Benches  of  this  Court,  

namely firstly Lonankutty, secondly Prabhu and thirdly Premier Tyres  

have already been discussed above.

19. We  must  additionally  advert  to  a  Four-Judge  Bench  decision  in  

Sheodan Singh vs. Daryao Kunwar  (1966) 3 SCR 300, in which this Court  

has lucidly enumerated five constituent elements of Section 11, namely:-

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(i)  The  matter  directly  and  substantially  in  issue  in  the  subsequent  suit  or issue must  be the same matter which was  directly and substantially in issue in the former suit;

(ii) The former suit must have been a suit between the same  parties  or  between parties  under  whom they or  any of  them  claim;  

(iii) The parties must have litigated under the same title in  the former suit;

(iv) The court which decided the former suit must be a court  competent to try the subsequent suit or the suit in which such  issue is subsequently raised; and

(v)  The  matter  directly  and  substantially  in  issue  in  the  subsequent suit must have been heard and finally decided by  the court in the first suit. Further Explanation 1 shows that it is  not the date on which the suit is filed that matters but the date  on which the suit is decided, so that even if  a suit  was filed  later, it will be a former suit if it has been decided earlier.  

The conundrum in  Sheodan Singh was only marginally different to what  

has  arisen  before  us.    The  Appellate  Court  was  confronted  with  five  

Appeals  from five different  Suits  between the same parties  in which the  

Issues were common.   Two of the Appeals were dismissed, albeit, not on  

merits.   It was in those premises argued and accepted by this Court that the  

principles  of  res  judicata  became operational  with  regard  to  the  decrees  

passed in the two suits in respect of which the Appeals filed thereagainst had  

been dismissed.   It was pithily observed that otherwise “all that the losing  

party has to do to destroy the effect of a decision given by the trial court on  

the merits  is  to  file  an appeal  and let  that  appeal  be dismissed on some  

preliminary ground, with the result that the decision given on the merits also  

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becomes useless as between the parties.”    Sheodan Singh took note of  

several  judgments  of  the  High  Courts,  which  preferred  to  overlook  

procedural  technicalities  ostensibly  in  the  interests  of  the  merits  of  the  

matter, but did not state its final opinion, which has propelled us to do so in  

order so that the divergent opinions be interred and dissonance be removed.  

20. On the issue of applicability of  res judicata in cases where two or  

more suits have been disposed of by one common judgment but separate  

decrees, and where the decree in one suit has been appealed against but not  

against the others, various High Courts have given divergent and conflicting  

opinions  and  decisions.   The  High  Court  of  Madras  and erstwhile  High  

Courts of Lahore, Nagpur and Oudh have held that there could be no  res  

judicata in  such  cases  whereas  the  High  Courts  of  Allahabad,  Calcutta,  

Patna,  Orissa  and erstwhile  High Court  of  Rangoon have taken contrary  

views.   It  should  also  be  noted  that  there  are  instances  of  conflicting  

judgments within the same High Court as well.  The decision of Tek Chand,  

J. in Full Bench Judgment of the Lahore High Court in Lachhmi vs. Bhulli  

[AIR (1927) Lah 289] and Full Bench Judgment of the Madras High Court  

in Panchanda Velan vs. Vaithinatha Sastrial [ILR (1906) 29 Mad 333] and of  

the Oudh High Court in B. Shanker Sahai v. B. Bhagwat Sahai [AIR 1946  

Oudh 33 (FB)] appear to be the leading decisions against the applicability of  

res judicata.   Without adverting to the details of those cases, it is sufficient  

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to note that the hesitancy or reluctance to the applicability of the rigorous of  

res judicata flowed from the notion that Section 11 of the Code refers only  

to “suits” and as such does not include “appeals” within its ambit; that since  

the decisions arrived in the connected suits were articulated simultaneously,  

there  could  be  no  “former  suit”  as  stipulated  by  the  said  section;  that  

substance, issues and finding being common or substantially similar in the  

connected suits tried together, non-filing of an appeal against one or more of  

those  suits  ought  not  to  preclude  the  consideration  of  other  appeals  on  

merits;  and that  the principle  of  res  judicata would be applicable  to  the  

judgment, which is common, and not to the decrees drawn on the basis of  

that common judgment.

21. On the other hand, the verdict of Full Bench of the Allahabad High  

Court  in  Zaharia  vs.  Debia  ILR (1911)  33  All  51  and  decisions  of  the  

Calcutta High Court in Isup Ali vs. Gour Chandra Deb 37 Cal LJ 184: AIR  

1923 Cal 496 and of the Patna High Court in Mrs. Getrude Oastes vs. Mrs  

Millicent D’Silva ILR 12 Pat 139 : AIR 1933 Pat 78 are of the contrary  

persuasion.  These decisions largely proceeded on the predication that the  

phraseology “suit” is not limited to the Court of First Instance or Trial Court  

but encompasses within its domain proceedings before the Appellate Courts;  

that non-applicability of  res judicata may lead to inconsistent decrees and  

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conflicting decrees, not only due to multiplicity of decrees but also due to  

multiplicity of the parties, and thereby creating confusion as to which decree  

has to be given effect to in execution; that a decree is valid unless it is a  

nullity  and  the  same cannot  be  overruled  or  interfered  with  in  appellate  

proceedings initiated against another decree; that the issue of  res judicata  

has to be decided with reference to the decrees, which are appealable under  

Section 96 of the CPC and not with reference to the judgment (which has  

been defined differently), but with respect to decrees in the CPC; that non-

confirmation of a decree in appellate proceedings has no consequence as far  

as it reaching finality upon elapsing of the limitation period is concerned in  

view of the Explanation II of Section 11, that provides that the competence  

of a Court shall be determined irrespective of any provisions as to right of  

appeal from the decision of such Court; and that Section 11 of the CPC is  

not exhaustive of the doctrine of  res judicata,  which springs up from the  

general principles of law and public policy.

22. Procedural norms, technicalities and processal law evolve after years  

of  empirical  experience,  and  to  ignore  them  or  give  them  short  shrift  

inevitably defeats justice.   Where a common judgment has been delivered in  

cases in which consolidation orders have specifically been passed, we think  

it  irresistible  that  the filing of  a single  appeal  leads to the entire dispute  

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becoming sub judice once again.  Consolidation orders are passed by virtue  

of the bestowal of inherent powers on the Courts by Section 151 of the CPC,  

as clarified by this Court in Chitivalasa Jute Mills vs. Jaypee Rewa Cement  

(2004) 3 SCC 85.   In the instance of suits in which common Issues have  

been framed and a common Trial has been conducted, the losing party must  

file  appeals  in  respect  of  all  adverse  decrees  founded  even  on  partially  

adverse or contrary speaking judgments.   While so opining we do not intend  

to whittle down the principle that appeals are not expected to be filed against  

every inconvenient or disagreeable or unpropitious or unfavourable finding  

or observation contained in a judgment, but that this can be done by way of  

cross-objections if the occasion arises.     The decree not assailed thereupon  

metamorphoses into the character of a “former suit”.  If this is not to be so  

viewed, it would be possible to set at naught a decree passed in Suit A by  

only challenging the decree in Suit B.     Law considers it an anathema to  

allow  a  party  to  achieve  a  result  indirectly  when  it  has  deliberately  or  

negligently  failed  to  directly  initiate  proceedings  towards  this  purpose.  

Laws of procedure have picturesquely been referred to as handmaidens to  

justice, but this does not mean that they can be wantonly ignored because, if  

so  done,  a  miscarriage  of  justice  inevitably  and  inexorably  ensues.  

Statutory law and processal law are two sides of the judicial drachma, each  

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being  the  obverse  of  the  other.    In  the  case  in  hand,  had  the  Tenant  

diligently filed an appeal against the decree at least in respect of O.S. 5/78,  

the  legal  conundrum  that  has  manifested  itself  and  exhausted  so  much  

judicial time, would not have arisen at all.    

23. Adverting in the impugned Judgment to the decision of this Court in  

Sajjadanashin Sayed vs. Musa Dadabhai Ummer AIR 2000 SC 1238, the  

Division Bench delineated the distinction between an aspect of the litigation  

that  is  collaterally  and  incidentally,  as  against  one  that  is  directly  and  

substantially  focal  to  the  question  the  determination  of  which  is  the  

immediate  foundation  of  the  decision.    Reference  was  also  drawn  to  

enunciation of what constitutes res judicata in Hoag vs. New Jersey (1958)  

356 U.S. 464, namely that this important legal principle is attracted “if the  

records  of  the  formal  trial  show that  the  judgment  could  not  have  been  

rendered without  deciding the  particular  matter,  it  will  be  considered  as  

having settled that matter as to all future actions between the parties”.   The  

Division Bench also garnered guidance from the observations of this Court  

in  Isher  Singh  vs.  Sarwan  Singh,  AIR  1965  SC  948  requiring  the  

examination of the Pleadings and the Issues in order to ascertain whether the  

question was directly and substantially litigated upon.   The Division Bench  

also considered Asrar Ahmed vs. Durgah Committee, Ajmer, AIR 1947 PC  

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1 and Pragdasji Guru Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai, AIR  

1952 SC 143, before concluding that Issue No.2 framed in O.S. 5/78 was  

wholly unnecessary and faulty.   The Division Bench held that the findings  

on that Issue were unnecessary, did not constitute the minimum foundation  

for the ultimate decision and, therefore, would not constitute res judicata.   

We  have  already  indicated  above  that,  in  our  opinion,  if  O.S.5/78  was  

merely a suit for injunction simpliciter, since the Defendants therein (both  

the  Trustees  as  well  as  the  Transferees)  had  posited  in  their  respective  

Written  Statements  that  they  had  no  intention  to  dispossess  the  

Plaintiff/Tenant, that suit ought not to have been dismissed but should have  

been decreed.   We have also laid emphasis on the fact that the Tenant had  

made a specific and pointed assertion in the plaint that the transfer of the  

demised land by the Trust to the Transferees was not in consonance with  

Section 26 of the Puducherry Hindu Religious Institutions Act, 1972.  We  

have also noticed the fact that this was an important objection raised by the  

Tenant in their Written Statement in O.S.6/78 and O.S.7/78.   It  seems  to  

be incongruous to us to consider ownership of the demised premises to be  

irrelevant in O.S.5/78 but nevertheless constitute the kernel or essence or  

fulcrum of the disputes in O.S.6/78 and O.S.7/78.   The dialectic adopted by  

the Court must remain steadfastly constant – if title was irrelevant so far as a  

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claim for injunction simpliciter, it was similarly so in relation to the party  

having the advantage of Section 116 of the Evidence Act in respect of its  

claim for arrears of rent from its tenant.  It would not be logical to overlook  

that the pleadings on behalf of the Tenant were common in all three suits,  

and that Issues on this aspect of the dispute had been claimed by the Tenants  

in  all  the  three  suits.    On  a  holistic  and comprehensive  reading  of  the  

pleadings of the Tenant in all the three suits, it is inescapable that the Tenant  

had  intendedly,  directly  and  unequivocally  raised  in  its  pleadings  the  

question of the title to the demised premises and the legal capacity of the  

Trustees to convey the lands to the Transferees.   This is the common thread  

that runs through the pleadings of Tenant in all three suits.   It is true that if  

O.S.5/78 was a suit for injunction simpliciter, and in the wake of the stance  

of  the  Trustees  and Transferees  that  no  threat  had been  extended to  the  

Tenants regarding their ouster, any reference or challenge to the ownership  

was wholly irrelevant.   But the ownership issue had been specifically raised  

by the Tenant,  who had thus caused it  to be directly and substantially in  

issue in all three suits.  So far as the Suit Nos.6/78 and 7/78 are concerned,  

they were also suits simpliciter for the recovery of rents in which the defence  

pertaining to ownership was also not relevant; no substantial reason for the  

Tenant to file an appeal in O.S. 6/78 had arisen because the monetary part of  

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the decree was relatively insignificant.  Obviously, the Tenant’s resolve was  

to  make  the  ownership  the  central  dispute  in  the  litigation  and  in  these  

circumstances cannot be allowed to equivocate on the aspect of ownership.  

Logically,  if  the  question  of  ownership  was  relevant  and  worthy  of  

consideration in O.S. 6/78, it was also relevant in O.S. 5/78.   Viewed in this  

manner, we think it  is an inescapable conclusion that an appeal ought to  

have  been filed  by the  Tenant  even  in  respect  of  O.S.  5/78,  for  fear  of  

inviting the rigours of  res judicata as also for  correcting the “dismissal”  

order.    In our opinion, the Tenant had been completely non-suited once it  

was held that no cause of action had arisen in its favour and the suit was  

‘dismissed’.   Ignoring that finding and allowing it to become final makes  

that conclusion impervious to change.  In Sheoparsen Singh vs. Ramnandan  

Prasad Singh, (1915-16) 43 I.A.91, the Privy Council opined - “Res judicata  

is an ancient doctrine of universal application and permeates every civilized  

system of jurisprudence.   This doctrine encapsulates the basic principle in  

all judicial systems which provide that an earlier adjudication is conclusive  

on the same subject matter between the same parties.”  The raison d’etre and  

public policy on which Res judicata is predicated is that the party who has  

raised any aspect in a litigation and has had an Issue cast thereon, has lead  

evidence in that regard, and has argued on the point, remains bound by the  

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curial conclusions once they attain finality.   No party must be vexed twice  

for the same cause; it is in the interest of the State that there should be an  

end  to  litigation;  a  judicial  decision  must  be  accepted  as  correct  in  the  

absence  of  a  challenge.    The  aspect  of  law  which  now remains  to  be  

considered is whether filing of an Appeal against a common Judgment in  

one case, tantamounts to filing an appeal in all the matters.  

24. The  application  of  res  judicata,  so  very  often,  conjures  up  

controversies, as is evident from the fact that even in this Court divergent  

opinions were expressed by the two Judge Bench, leading to the necessity of  

referring  the  appeal  to  a  Larger  Bench.   It  was  for  this  reason  that  we  

thought it appropriate to deal with the dispute in detail.  It seems to us that  

had the decisions of the three Judge Bench in Lonankutty and Prabhu been  

brought to the attention of our Learned and Esteemed Brothers on the earlier  

occasion when this appeal was heard by two Judge Bench, the dichotomy in  

opinion would not have arisen.   The outcome of the appeal before the High  

Court would have also shared a similar fate.   On the foregoing analysis,   

especially the previous enunciation of law by three Co-ordinate Benches, we  

are  in  agreement  with  the  opinion of  our  Learned Brother  Asok  Kumar  

Ganguly that the appeal calls to be allowed.  We are of the opinion that  

having failed or neglected or concertedly avoided filing appeals against the  

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decrees in O.S.5/78 and O.S.7/78 the cause of the Respondents/Tenants was  

permanently sealed and foreclosed since  res judicata applied against them.  

We accordingly allow this Appeal but keeping the varying verdicts in view  

decline from making any order as to costs.

…………………………..………J. (ANIL R. DAVE)

…………………………..………J. (VIKRAMAJIT SEN)

……………………..…………….J (PINAKI CHANDRA GHOSE)

New Delhi, October 09, 2014.

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ITEM NO             COURT NO.14               SECTION XII (1A For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Civil Appeal No.4227/2003 GANGAI VINAYAGAR TEMPLE & ANR.                 Appellant(s)                                 VERSUS MEENAKSHI AMMAL & ORS.                       Respondent(s) (with office report)

Date : 09/10/2014 This appeal was called on for          pronouncement of judgment today.

For Appellant(s)     Mr. Sanjay R. Hegde,Adv.                       For Respondent(s)    Mr. K. Ramamoorthy, Sr.Adv.

Mr. Senthil Jagadeesan, Adv.                      Mr. V. Ramasubramanian,Adv.                                Hon'ble Mr. Justice Vikramajit Sen pronounced the  judgment of the Bench comprising Hon'ble Mr. Justice Anil  R.  Dave,  His  Lordship  and  Hon'ble  Mr.  Justice  Pinaki  Chandra Ghose.

The appeal is allowed with no order as to costs  in terms of the signed judgment.   (USHA BHARDWAJ)  (SAROJ SAINI)       

AR-CUM-PS     (COURT MASTER) Signed reportable judgment is placed on the file.

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